settled and important rule such intention | longer evidence of title. The certificates would have been expressed in plain terms. were produced at the trial by the surveyor In this case there was a succession of inter-general, who testified that they had been est on one side only. The appellants were surrendered when the application for the parties to the suit in which the deposition patent was made, and were then in his of was taken. and were notified of its taking, fice; that patents had been issued for a porand were represented by counsel thereat, tion of the land; and that a notice of indorse and were permitted to cross-examine the ment had been made upon each certificate witness upon precisely the same issues as as follows: On certificate No. 1,659 the folare involved here. We think that the rul-lowing: "S. W. 4 of S. E. of section 24. ing complained of was right, and we there- patented to Tierry Wright, April 14, 1884: fore advise that the judgment and order and on certificate No. 1,660 the following: appealed from be affirmed. "S.W. and N. W. % of sec. 36, patented to Teirry Wright, April 14, 1884." The witness testified that patents were issued for the portions designated in said indorsements. and were for part of the lands" described in the certificates." And the descriptions in the certificates show the number of the township, range, and meridian. The receipts upon the certificates show that the principal and interest thereon had been fully paid up. It will be observed that this evidence presents two cases, viz., one in which no patent had been issued; and the other, in which a patent had been issued.

We concur: BELCHER, C. C.; VANCLIEF, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

WRIGHT V. ROSEBERRY et al. (No. 12, 811.) (Supreme Court of California. Oct. 9, 1889.) EJECTMENT-EVIDENCE.

1. The surrender of certificates of purchase of lands for the purpose of obtaining a patent there for, as required by law, (Pol. Code Cal. § 3519,) does not destroy their value as evidence of ownership, in ejectment.

2. Nor does the issue of a patent for a portion of the land only, on the surrender of such certificates, destroy their effect as evidence of ownership of the remainder, in the absence of evidence as to why the patent was not issued for the whole.

3. Such certificates, and indorsements thereon, showing that patents had issued for part of the land described therein, together with the testimony of the surveyor general that patents had issued as noted in such indorsements, is sufficient proof of the patents to establish a prima facie case of ownership of the land patented, in the absence of an objection that the evidence is secondary, or on motion for nonsuit.

4. Where the certificates were produced on the trial by the surveyor general, who was examined and cross-examined in regard to them and the indorsements, and were left by him in the custody of the court, under its order, they will be considered as in evidence.

1. As to the land for which no patent has been issued, we think that the certifi cates made a prima facie case. The indorsement does not constitute a material alteration. It does not purport to change the tenor or character of the instrument, but was a mere minute or memorandum of subsequent action; and such memorandum does not purport to be a cancellation of the certificate, and was not so, unless such a consequence results as a matter of law from the transaction appearing from the memorandum, viz., from the surrender of the certificates and the issuance of patents for a portion of the land described therein. The mere surrender of a certificate of purchase does not destroy its validity as evidence of title. The law requires that it shall be surrendered before a patent can issue. Pol. Code, § 3519; Duncan v. Gardner, 46 Cal. 25. And it cannot have been the intention that the holder should lose anything by complying with the law. The Commissioners' decision. In bank. Ap-surrender is not absolute, but is for a cerpeal from superior court, Yolo county; C. tain purpose only; and upon such surrenH. GAROUTTE, Judge. der (and until the patent has issued) the officer is the custodian of the document for the benefit of the person entitled. It is not impossible that the officer may be negligent. Or some mistake or inadvertence may occur, through which a considerable period may elapse before the patent is issued. And if during such a period a stranger should intrude, or be in possession, the owner of the certificate has the same right to have such person ejected that he had before his evidence of title was surrendered. It affirmatively appears that the surrender here was for the purpose of obtaining a patent; and therefore the surrender did not of itself destroy the effect of the certificate as evidence of ownership. Nor do we think that, if the certificate is otherwise valid, the fact that the officer has issued a patent for a portion of the land operates to destroy the certificate as to the remaining portion. We have not been referred by coun

C. P. Sprague, for appellant. J. C. Ball and S. C. Denson, for respondents.

HAYNE, C. Ejectment. The plaintiff was nonsuited at the trial, and appeals from the judgment upon a bill of exceptions. The question is whether the plaintiff's evidence was sufficient to make a prima facie case. His evidence consisted of two certificates of purchase, and certain other documentary evidence, tending to show that the land was swamp land, and certain testimony in relation to said certificates. The case has been before the supreme court of the United States, and that court held that the documents made a prima facie case for the plaintiff. Wright v. Roseberry, 121 U. S. 517, 7 Sup. Ct. Rep. 985. That decision is conclusive in favor of the plaintiff, unless there is some material circumstance which was not presented to or considered by the court. The respond-sel to any provision of law which would ents contend that it now appears that said certificates had been surrendered and canceled, and that they are therefore no

work such a result; and the record does not show why the patent was not issued for the whole tract. It may be that the non-ac

that the objections were made at the time the evidence was introduced, the same result follows; for, even where evidence is erroneously admitted against objection, but tends to prove something, full ef fect must be given to it upon motion for nonsuit, and upon the question of the insufficiency of the evidence to support the decision. This has been decided with reference to the insufficiency of the evidence. McCloud v. O'Neall, 16 Cal. 397; Pierce v. Jackson, 21 Cal. 636. And we think it plain that the same rule applies on motion for nonsuit. For reasons stated below it sufficiently appears that the certificate was admitted in evidence; and hence, upon any construction of the record, in this respect, there was sufficient proof of the patents to make a prima facie case as to the portion of the tract embraced therein.

tion of the officer as to the omitted portion | vor of this branch of the respondents' case was mere inadvertence, or was the result of a clerical error; or it may be that the omission was owing to an erroneous view of the law on the part of the officer. In such case it might be considerable time before the error could be corrected; and we do not think that in the mean time the land is open to occupation by the public. If strangers intrude upon it, and the certificate be in fact valid, the owner should not be deprived of his recourse to the courts for redress, by the error or inadvertence of the officer. If the certificate be in fact invalid for any reason, such invalidity can be shown in such suit; but if it be otherwise valid the mere fact that patents have been issued for a portion of the land does not destroy the effect of the certificate as evidence of ownership. In the present instance no reason for holding the certificate invalid (other than the foregoing) is shown. If there were any such reason it should have been made to appear.

Now, if either of the above positions is correct,-that is to say, if the plaintiff's evidence made a prima facie case either as to the land for which patents had been issued to him, or as to the land for which patents had not been issued,-the nonsuit cannot stand; for it cannot be seen from the record that the motion for nonsuit was made as to any particular portion of the tract sued for, (assuming that such a course would have been proper.) The record states that the motion for nonsuit was made "upon the several grounds then and there duly specified and stated," but it does not show what such grounds were, or whether the motion was as to a whole or a portion of the tract. Consequently, if either of said positions be correct, the judgment against plaintiff for the whole tract was erroneous.

3. It is contended for the respondents, however, that the certificates of purchase were not, as a matter of fact, introduced in evidence. They certainly were not formal

2. When a patent has been issued for the land called for by a certificate of purchase, the latter is superseded by the patent, and becomes functus officio. In this view the plaintiff's certificate was no longer evidence of ownership of the portion for which a patent had issued; but we think that, so far as this portion was concerned, the plaintiff made a prima facie case by the above-mentioned proof of his patents. As above stated, the surveyor general distinctly testified that patents had been issued, as noted in the indorsements upon the certificates, for part of the land "described in the certificates," and, taking his testimony in connection with said indorsements and certificates, the time when the land for which and the person to whom the patents were issued sufficiently appears. This, indeed, was not shown by the best evidence. But it is settled that, if a party permits his ad-ly introduced. They were at the time in versary to prove his case by secondary evi- the custody of the surveyor general. He dence, he cannot afterwards object that was called as a witness, and produced and better evidence should have been produced. identified them. And the record states that The secondary evidence is, under such cir- the certificates of purchase were then placed cumstances, sufficient. Goode v. Smith, 13 in the hands of the reporter by the followCal. 84; St. John v. Kidd, 26 Cal. 270; Jan- ing order by the court: "It is ordered that son v. Brooks, 29 Cal. 223; Rewrick v. Gold- the surveyor general leave them in the cusstone, 48 Cal. 555; Frink v. Alsip, 49 Cal. tody of the court until the conclusion of the 103. There is a statement towards the case, thereupon to be returned to him at close of the bill of exceptions that "all of his office." The parties examined and the documentary evidence was objected to cross-examined the surveyor general conby the defendants, and each of them, upon cerning them, and concerning the indorsethe grounds of irrelevancy, incompetency,ments thereon. Furthermore, it is not enand immateriality." This does not show tirely clear that the respondents' objections whether said objections were made at the above quoted were not made to them; but, time the evidence was offered, or towards whether they were or not, it would seem the close of the trial. From the place in the clear from the other circumstances menbill of exceptions where the objection is in- tioned that both the court and the counsel serted, the latter inference might perhaps for the appellant understood that the docube drawn. If such is the proper constructionments were in evidence; and under the cirof the record, the objections were too late; cumstances they should be so considered. for it is a familiar rule of practice that the Compare Landers v. Bolton, 26 Cal. 414, 415; party must make his objections to evidence Pearson v. Pearson, 46 Cal. 628. We there at the time it is offered. If, therefore, the fore advise that the judgment be reversed, record is to be construed as showing that and the cause be remanded for a new trial. the objections were not made until towards We concur: FOOTE, C.; GIBSON, Cthe close of the trial, they were too late, and the case stands as if no objections were made. But without saying what the proper construction is, and assuming in fav.22p.no.12-22

PER CURIAM. For the reasons given in the foregoing opinion the judgment is reversed, and cause remanded for a new trial.

BORN V. HORSTMANN et al. (No. 12,586.) (Supreme Court of California. Sept. 20, 1883.)

WILLS-CONSTRUCTION-CONDITIONS.

A bequest to testator's daughters, to take effect "in the event of any of my said daughters becoming a widow, or otherwise becoming lawfully separated from her husband, "is not void as against public policy by encouraging the legatees to become separated from their husbands.

Department 1. Appeal from superior court, city and county of San Francisco; JAMES G. MAGUIRE, Judge.

For opinion on application to modify stay of proceedings, see ante, 169.

Charles A. Summer, (M. T. Moses, of counsel,) for appellants. E. J. Linforth and A. H. Loughborough, (Henry N. Clement, of counsel,) for respondent.

set off to her. The other daughters, who were made defendants, answered, among other things, as follows: "That it was the intention of said testatrix, in and by the said will, to give to each of her said daugh ters in fee-simple, an undivided one-fifth interest in the said land, upon condition that they should respectively separate or become divorced from their respective husbands, and that said condition was annexed to the said devise by said testatrix with intent to incite and encourage her said daughters to live separate or be divorced from their said respective husbands. That the said condition, and the provisions of the said Will, in that behalf, are contrary to good morals and the policy of the law, and the trusts for that purpose created are null and void." We are pleased to see that this allegation is not verified by the daughters, but by their attorney, who cannot be charged with having reflected upon a dead mother in order to obtain possession of her property. The children of the son, who was deceased, and of the daughters, were also made defendants, and answered by guardian ad litem. The court below found the facts substantially as above stated, and also "that it was the intention of said testatrix, in and by said will, to give to each of her said daughters, in fee-simple,.an undivided one-fifth interest in the said real estate, upon condition that they should respectively separate or become divorced from their respective husbands, and that said condition was annexed to said devise by said testatrix with intent to incite and encourage her said daughters to live apart or be divorced from their respective husbands." As conclusions of law the court below found that the above-named conditions were void; that the daughters all took the property absolutely freed from said condition, and that their children had no interest in the property; and rendered judgment of partition accordingly. The children of the daughters, by their guardian ad litem, appeal.

WORKS, J. One Margaretha Faulhaber died the owner of certain real estate, and left surviving her four daughters and one son; some, if not all, of whom had children, who still survive. The deceased left a will, by which she conveyed her property to one Peter Schenkel and the defendant Horstmann, to be held and disposed of as follows, after the payment of certain specific bequests: "(4) To quarter-yearly equally distribute and pay unto my hereinafter named son and four daughters, during the term of their natural lives, the net income of the remainder of my said estate, in their own right, share and share alike, viz., Frank Faulhaber; Magdalena Ellen, now the wife of Henry Lux; Caroline, now the wife of Charles Born; Elizabeth, now the wife of George W. Zimmer; and Mary, now the wife of Christian Scheiffler. (5) And in the event of the death of any of my said children, then to equally distribute, transfer, and convey the net one-fifth part of the remainder of my said estate unto the surviving lawful issue of such deceased child, in her, his, or their own right, share and share alike. (6) In the event of the death of any of my said children without having any lawful issue surviving the same, then to quarter-yearly equally distribute and pay Both the appellants and the respondent such proportion of the said income as the now agree in contending that the condition deceased should be entitled to receive (if liv- in the will which affected their rights to the ing) by this will unto such of my said chil-property in case of a separation from their dren as may survive the deceased in their own right, share and share alike. (7) And in the event of any of my said daughters becoming a widow, or otherwise becoming lawfully separated from her husband, then to distribute, transfer, and convey unto such of my said daughters the net one-fifth part of the remainder of my said estate, in her own right, and in lieu of the further dis-referred to being void, they were, as held tribution and payment to her of any of the said income." Horstmann alone accepted the trust. The will was probated, the eslate settled, the specific bequests paid, and the residue of the property distributed to Horstmann, to be held in trust by him as provided in the will.

The plaintiff in this action was one of the daughters named in the will. After the property was distributed as above stated she was divorced from her husband, and the trustee, acting under the seventh clause of the will, conveyed to her the undivided one-fifth of the real estate, and this action was brought by her for a partition of the property, and to have her interest therein

husbands otherwise than by death, was void; but they do not agree as to the effect of the provision being so held. The appellants contend that, construing that clause to be invalid, the daughters were not entitled to the property until the death of their husbands; while the respondent and the other daughters contend that the clause

by the court below, entitled to the property at once. We regret that we are unable to agree with counsel on either side, or with the court below, as to the proper construction of this clause in the will. ́In our judgment there is nothing in the conditions referred to that can be held to be against public policy. There are cases holding that a condition in a will which holds out to the legatee an inducement to live separate and apart from her husband is void as against public policy. Thus, in Brown v. Peck, 1 Eden, 140, the will provided that the legatee should be paid two pounds per month if she lived with her husband, but if she lived from him, and with her mother, she

should be paid five pounds a month. In examination do not sustain the rule as here Wren v. Bradley, 2 De Gex & S. 49, the be- sought to be applied. They are generally quest was "to my daughter, Ann Jefferies cases in which an inducement was directly Wren, the wife of Abraham Wren, in case she held out to encourage a voluntary separashall be living apart from her said husband, tion of husband and wife, and where the inthe said Abraham Wren, and shall continue tent to encourage such a separation could so to do during the life-time of my said be found in the language employed in makwife, an annuity of £30, by equal quarterly ing the bequest. They are none of them so payments, the first of such payments to be similar in their facts to the case at bar that made at the expiration of three calendar they can be considered authorities in it. months next after my decease. And I do The first object is to ascertain, if possihereby further direct that, if at any time ble, what the intention of the testatrix the said Ann Jefferies Wren shall cohabit was; and we find no difficulty in reaching with the said Abraham Wren, the said an- the conclusion that it was to have her esnuity herein before given to her shall, during tate disposed of just as it has been by the the time she shall so cohabit, absolutely probate court. It was a wise and prudent cease and determine." In Conrad v. Long, provision to make for her daughter. While 33 Mich. 79, the clause of the will was as fol- she should remain a wife, her husband lows: "To my brother, Frederick S. Con- would be under obligation to support her, rad, I give and bequeath the one-half so re- and hence the income only was absolutely maining, and the other half I give and be- left her during the continuance of that rela-queath to my sister, Elizabeth Long, upon tion; but when she should cease to be a this condition: if at any time subsequent wife, and so become dependent upon her she should conclude not to live with her own resources, it was just and wise to propresent husband, Henry Long, as his wife. vide that she should have the entire estate." But if she continue so to live as the wife of Thayer v. Spear, 58 Vt. 327, 2 Atl. Rep. 161. the said Henry Long until her death, then, We fully concur in this view of the law.. in that case, I give and bequeath all my Not only may there be a good and sufficient property, real and personal, remaining reason, as stated in the opinion cited, for after the burial of my mother aforesaid, to providing that the legatee shall not have my aforesaid brother, Frederick S. Conrad." the bulk of the property until she is deIn all of these cases the conditions quoted prived of the support of a husband, but were very properly held to have been void. there may be the best of reasons for placing The reason is apparent. They held out a the same in such condition that she cannot direct inducement for the legatees to live be improperly induced by a worthless or separate and apart from their husbands. profligate husband to squander it, while The result may have been to bring about she continues to be his wife, and, it may the separation and violation of their mar-be, under his influence and control. We ital duties and obligations without any just cause, and in an unlawful manner. This is not so in the case at bar. The condition under consideration could not be complied with except by a legal separation, and for causes found by a court of justice to be sufficient. This being so, there was nothing unlawful in the condition. It is true it may be said that it would have a tendency to induce the wife to assert her legal right to a divorce and separation, and that but for such inducement such right might have been waived, but it can hardly be said that it is against public policy to attach to a legacy such a condition as will tend to induce a legatee to do a lawful act in a lawful way.

think such a condition in a will is not only valid, but that under certain circumstances it may be just and commendable.. For these reasons the judgment of partition in favor of the plaintiff was proper, but so much thereof as authorized the balance of the property to be set off to the daughters who were still married was erroneous. It was error, also, to hold and adjudge that the children of the daughters last mentioned. had no interest in the property. They are entitled to have the property remain undisposed of until the conditions of the will are complied with, and to inherit the same upon the death of their mother before the condition shall happen. Judgment and order reversed, and cause remanded for further proceedings in accordance with this opin-ion.

We concur: Fox, J.; PATERSON, J.

The precise question presented here has been before the supreme court of Vermont, in which the will provided that the legatee should have the income of the estate, and such further sums as her wants might demand, so long as she remained the wife of I. A. Thayer; but if she was "left a widow, HUDEPOHL V. LIBERTY HILL CON. MIN. & or for any cause should cease to be the wife WATER CO. (No. 12,570.) of said Thayer," the whole estate should be (Supreme Court of California. Sept. 20, 1889.) given to her. In that case the court said: The ground upon which it is claimed that MINES AND MINING-CONSTRUCTION OF AGREEMENT. the provision of the will violates public plaintiff, for one year, the right to work and mine Defendant, a corporation, agreed to lease te policy is that it furnishes an inducement to certain mining ground, the gross products thereof the wife to become the widow of her hus- to be equally divided between plaintiff and defendband, or to separate herself from him in ant. Held, that such agreement was not a lease, such a manner that she would cease to be even though the parties so termed it, and so was his wife. The appellants, to sustain this not within the statute (St. Cal. 1880, p. 131) de claim, rely upon the rule as stated in 2 Ref. claring all leases of mining ground by corporations: Wills, 293; 1 Story, Eq. Jur. 291, and the unlawful unless ratified by the stockholders, but case of Conrad v. Long, 33 Mich. 78. The shares, and a promissory note given to plaintiff for was an agreement for the working of a mine on cases cited in support of the rule laid down his share of the products was upon a valid consid in Redfield and Story it will be found oneration.

Department 1. Appeal from superior one was absent, one voted against the rescourt, Nevada county; J. M. WALLING, olution, and three in favor of it. That one Judge.

Byrne & Cross, for appellant. H. L. Gear, Gaylord & Searls; and C. A. & F. P. Tuttle, for respondent.

of the directors who voted for the resolution was indebted to the plaintiff in the sum of $500 on a promissory note, and shortly after the resolution was passed the plaintiff surrendered said note to said director without consideration. Buckman assigned his interest in the note sued on to the plaintiff before this suit was commenced.

that purpose.' St. 1880, p. 131. If the agreement could be construed to be a lease of the real estate of the defendant, it may be conceded that the point made against its validity would be well taken; but we do not regard it as a lease. It is true the parties so term it in the instrument itself, but that cannot affect its legal construction. As we construe the agreement, it was one for the working of the mine on the shares, and the parties became tenants in

WORKS, J. Action on a promissory note. Answer, want of consideration. Trial and judgment for the plaintiff. The defendant appeals on the judgment roll. The court The appellant contends that the agreefound that the defendant, being a corpora- ment above set out was the only considertion, entered into the following contract ation for the note. That said contract with the plaintiff and one Buckman, was a lease of the real estate of the corpothrough its superintendent: "Know all ration, and as such was void, for the reamen by these presents that I, S. Wheeler, son that the same was not ratified by the superintendent of the Liberty Hill Consoli- stockholders as required by the statute of dated Mining & Water Company, for and 1880, which provides: "Section 1. It shall on behalf of said company, have leased, not be lawful for the directors of any minand by these presents do lease, to C. Hu- ing corporation to sell, lease, mortgage, or depohl and B. S. Buckman, for the term of otherwise dispose of the whole or any part one year from the date hereof, the right and of the mining ground owned or held by such privilege to work and mine the ground at corporation, * unless such act be or near Little York, in Nevada county, Cal., ratified by the holders of at least twoknown as the 'Empire' and 'Manzanita' thirds of the capital stock of such corporaclaims, on the following terms and condi- tion. Such ratification may be made eitions,to-wit: The said Liberty Hill Com-ther in writing, signed and acknowledged pany to make all the improvements neces- by such stockholders, or by resolution duly sary for commencing and carrying on the passed at a stockholders' meeting, called for work of mining. Said improvements to consist of putting in flumes and under-currents in Scott's ravine, and a short piece of flume in the Big Tunnel emptying into said ravine; to furnish sufficient iron pipe and hydraulic machines, and all the water in what is known as the 'Lower Bear River Ditch;' in consideration for which the said Hudepohl and Buckman are to work and mine the said ground in an energetic and workman-like maner, bearing all expenses for the same, and to have and receive one-common of the products of the mine when half of all the gross products thereof, includ- taken out. Bernal v. Hovious, 17 Cal. 545; ing leases of cuts, tunnels, flumes, and bed- Smyth v. Tankersley, 20 Ala. 212; Ponder v. rock, which they may have run through and Rhea, 32 Ark. 435; Somers v. Joyce, 40 over during the existence of this lease. The Conn. 592; Scott v. Ramsey, 82 Ind. 330; other half of such gross products to be paid Dinehart v. Wilson, 15 Barb. 597: Aiken v. over to the said Liberty Hill Company im-Smith, 21 Vt. 172; Haywood v. Rogers, 73 mediately on clean-ups or leases or sales N. C. 320. Such a contract does not create being made. Prior to each and every clean- the relation of landlord and tenant, but up being made, the superintendent of the fixes a rule of compensation for services Liberty Hill Company shall be notified rendered. It is, in all its essential features, thereof in time to be present if he chooses, a contract for labor to be performed and and he shall have the custody of all the bull- to be paid for by a share of the profits reion and the other products until a divis-alized from such labor. Civil Code, § 1965; ion be declared. In witness whereof I have Crowley v. Mining Co., 55 Cal. 273; Gardenhereunto subscribed the name of the corpo-hire v. Smith, 39 Ark. 280; Jeter v. Penn, 28 ration, this October 10, 1881." That said La. Ann. 230; Adams v. McKesson's Ex'x, agreement was never ratified by the stock-53 Pa. St. 81; Hoy v. Gronoble, 34 Pa. St. 9. holders of the company. That the plaintiff and Buckman worked the mines described in the contract, and delivered the bullion to said Wheeler, who deposited it with the bankers, and drew on them during the lease to pay the expenses of the mining, including the wages of plaintiff and Buckman and their hired help. That when they ceased work there remained in the hands of said superintendent $3,422.01 of their one-half of It is further contended that it appears the proceeds of the mines taken out by from the findings that one of the directors them, and that the note sued on was given of the defendant was induced to vote in fafor that sum of money, instead of deliver-vor of the resolution authorizing the execu ing to them the money or bullion itself. That the president and secretary of the defendant were authorized, by a resolution of the board of directors of the defendant, to execute the note. That the said board of directors consisted of five members. That

So construing this agreement, it was not within the prohibition of the statute of 1880, above referred to. The plaintiff was the absolute owner of the share of the products of the mine, ascertained and declared by the parties to bave been $3,422.01, and the note given by its officers therefor was upon a valid consideration, and binding upon the defendant.

tion of the note, by the surrender of or agreement to surrender to him his note held by the plaintiff. But the court does not so find, and there is no allegation in the pleadings upon which to base such a contention. It is found that the director voted for the